www.elsblog.org - Bringing Data and Methods to Our Legal Madness

25 January 2008

The Late Edward Levi on Interdisciplinarity

Brian Tamanaha's recent post at Balkanization has set off a firestorm on merits and trade-offs of interdisciplinarity. I admire Brian a lot, and I am heartened that his remarks are causing us to re-examine some core assumptions about modern day legal education.

In many respects, however, all of this blogosphere traffic is really reprisal of one of the oldest debates in the legal academic business. For example, in 1950, the late Edward Levi, former Dean at the University of Chicago, delivered a talk to the Chicago Bar Association, entitled "Legal Education Today," which focused on the alleged tension between teaching lawyering skills versus an integration of law with the social sciences. Here is an excerpt (the full speech is available here):

Every university law school which takes itself seriously has become during the last twenty years a self-conscious institution troubled about its aims and methods. ...

The conflicting criticism of law schools--that they are either too vocational or too theoretical--has served to make important the somewhat unreal question of whether university law schools exist to train lawyers or to give training in the science of the law. A statement of the supposed conflict in the language of almost fifty years ago would be to ask whether law schools exist to "give adequate preparation for the practice of law as a profession" or rather "to cultivate and encourage the scientific study of systematic and comparative jurisprudence, legal history, and principles of legislation." This language is taken from the first announcement of the University of Chicago Law School issued in the year 1902. ... The answer which they gave to the supposed conflict was that both of these aims are proper objectives of a university law school.

Surely the correctness of this answer has not changed in the course of the years. No law school has any right to be in operation if it is not interested in and dedicated to the training of lawyers. ...

Today [i.e., 1950] the balance sheet and economic theory have become exceedingly important in some areas of law, as, for example, corporations, taxation, labor law, and trade regulations. And it can no longer be said that this is true only for the large and exceptional case. Today's law student has a right to ask that he receive sufficient training to equip him to handle the evidence and theories used by lawyers in these areas. This means that he must know some accounting and some economic theory. ...

[Another deficiency which we much address] is the failure of law schools to teach the underlying theories of their subject matter. By this I mean that legal theory does not exist in isolation. It describes historic institutions which have purposes to serve and which are to be seen as part of the structure of modern society. An understanding and evaluation of these institutions must be a central purpose of legal education. ... [S]ince the profession itself can exert a powerful influence on the course of events, it is important that the individual lawyer be assisted to gain for himself a philosophy of law in which legal institutions are understood in terms of the interests they protect.

A lawyer ought to have a philosophy about civil liberties. He ought to have a philosophy about property rights, which is to say he must have some understanding of economic and political theory. ...

Law schools are important because lawyers are important. A community is to be judged by its standard of justice and its use of the standard. The standard to a considerable extent is made, and in any event applied and made real, by the lawyers. Their work habits, their standards of morality, and their ability to see institutions in perspective and yet to handle the immediate problem with precision and care are of extreme importance to the working of a democratic society. ...

These are wonderful, aspirational words -- indeed, the vision that motivated Levi's tenure as dean. I have one editorial note to add.

The core problem raised by interdisciplinary is not one of cost but one of purpose. As noted by Harry Edwards in his famous 1992 article, The Growing Disjunction Between Legal Education and the Legal Profession, 91 Mich L. Rev. 34, and its postscript, 91 Mich. L. Rev. 2191. , the "Law and ... " movement has to have some nexus with the real world. Too often law faculty are perceived to be made better merely by adding prolific scholars with elite JD and PhD credentials--the quality assessment is rarely rooted in a coherent vision on how to educate the next generation of lawyers. Not surprisingly, the "law and ... " movement has barely made a dent into the Langdellian pedagogy that Edward Levi (in another portion of the same speech) wanted to moderate and supplement.

According to Levi, being interdisciplinary IS about teaching. But we can't do that job effectively without engagement as scholars. The cost problem identified by Brian Tamanaha arises because scholarship, at both an institutional and individual level, is now disproportionately pursued as an end in itself. Because interdisciplinary scholarship is embraced by the most elite law schools, the cost of the most prolific and/or best credentialed scholars are going to get bid up. But elite law schools have seldom used this intellectual firepower to recast or retool or substantially upgrade what or how they teach--rather, they have just cranked out more books and articles. This is what economists refer to as positional competition; as a positive matter, it is socially inefficient.

Note, however, this is an observation, not a criticism. Materialism tends to shape behavior, in the board room, the clubhouse, the priesthood, or the academy. Occasionally, as history shows, leadership (like Ed Levi) or luck or random events can recast the mold. So I remain optimistic.

Comments

"Law and ___" may not have radically altered the pedagogy but it is fair to say that law and economics has radically shifted the _content_ of law teaching, toward a more empirical approach. Economic empiricism is the most influential "interdisciplinary" nexus in law.

I find it refreshing to see your endorsement of leadership as a catalyst for reform. I am curious about people's opinions of "scholarship" as advocacy and advocacy as scholarship, for example, the collective output of Judge Posner (demonstrating that at least one side is willing to use data for explicitly political ends.)

My conflict with empricism comes from data being wielded to justify a thinly disguised social-darwinism that I despise. And then progressives paradoxically seem content to stop at merely reporting their data, and too often fail to push for reform to oppose current empirical realities. Some days I think we were better off when inspirational role models like JFK and MLK Jr. set goals and gave compelling anecdotes.

Scholarship as an end in itself is more than inefficient, it is inferior in my view to "aspirational" or reform minded (or teaching) work. Most of the academy self-designates as progressive, but the most politically effective scholars of late have been a few fundamentalist-libertarians-with-a-plan from UChicago and Harvard. Much of the putatively "progressive" scholarship I had to read on review had titles like "Sex Torts" or "F---".

How frustrating, especially since this slow slide from progressivism into representation into self-representation has been the subject of influential critiques in other humanities:

"With the liquidation of its opposition to empirical reality art assumes a parasitic character. Inasmuch as it now appears itself as reality, which is supposed to stand in for the reality out there, it tends to relate back to culture as its own object. The monopolistic hold on culture, which forbids anything that cannot be grasped, necessarily refers us back to what has already been produced in the past and institutes self-reflection"
-- from Adorno, "The Culture Industry"

So you heard what Adorno said, scholarship (art) without purpose is parasitic, narcissistic, and reaffirms the status quo.